Trial Magazine
On the Hill
So Much To Do, So Little Time
September 2018September is usually a busy month on Capitol Hill, knowing that there is much to accomplish in a few weeks before Congress heads home to campaign for the midterm elections.
Funding for the federal government runs out on Sept. 30, the end of its fiscal year, and many other programs also have the same deadline. For example, Congress needs to reauthorize the Federal Aviation Administration (FAA), which has been operating under multiple extensions. The House has passed its reauthorization bill, but the Senate still needs to act.
AAJ Public Affairs works on these measures because tort “reform” riders are regularly added to spending measures and reauthorization legislation. We are following around 900 bills, which is already about 150 more than the total from last Congress!
Cooperation seems less likely. When Justice Anthony Kennedy announced his retirement, Senate floor time became even more precious. In a closely divided Senate of 51 Republicans and 49 Democrats, not every bill coming from the House makes it to the floor. Some become stuck in the Senate Judiciary Committee, and others come out of different committees but remain controversial.
The Senate Commerce Committee marked up its version of the FAA reauthorization bill last year, but it has been difficult for Chairman John Thune (R-S.D.) to get it scheduled for floor debate, although he continues to try. The Senate rules require either unanimous consent to proceed or 60 votes to bring a successful cloture motion, which limits debate to 30 hours.
AAJ has concerns with an amendment added during committee consideration that preempts state and local employment protections such as “meal and rest break” laws for drivers and a separate push from logistic companies that would immunize third-party entities responsible for hiring truck drivers and organizing shipments.
As the Senate Judiciary Committee works on Judge Brett Kavanaugh’s nomination to the U.S. Supreme Court, members will have even less time to work out differences on other issues.
Public Affairs had expected a Senate Judiciary Committee tort reform hearing before the midterm elections on asbestos and litigation funding bills that were introduced in the spring. Both bills are based on H.R. 985, the “Fairness in Class Action Litigation and Furthering Asbestos Claim Transparency Act,” which passed the House and affects class actions, multidistrict litigation, litigation funding, and asbestos trusts.
But Justice Kennedy’s retirement has taken up the Senate Judiciary Committee’s available time. AAJ will make sure that senators have information about Judge Kavanaugh’s record of siding with corporations over workers, investors, consumers, and families.
Executive order on ALJs. AAJ, along with other organizations, is looking for a way to undo the administration’s executive order on administrative law judges (ALJs) issued in early July. The order would replace the current merit-based selection system with a political appointment process and could negatively impact thousands of Social Security and other cases heard by ALJs.
What’s next? Congress will get very little legislative business done during this time beyond the spending appropriations bills to fund the government for the next fiscal year. Congress has a poor record of funding the government on time, and with the midterm elections looming, it wants to avoid a government shutdown.
Several anti-civil-justice riders are in the House appropriations bills, but all the Senate bills are going to the floor clean. Time constraints will increase pressure to keep controversial provisions out of the appropriations bills, but we remain vigilant to ensure harmful riders are not passed under the wire.
Susan Steinman is AAJ’s senior director of policy and senior counsel. She can be reached at susan.steinman@justice.org. To contact AAJ Public Affairs, email advocacy@justice.org.